Causation and the Draft Articles on State Responsibility

Abstract

Few issues have proven to be as vexing to courts and tribunals as the matter of causation. The causation inquiry calls for nuanced exploration of sometimes metaphysical concepts—overdetermination, novus actus interveniens, probability—while serving the practical function of balancing over-deterrence against the enforcement of legal rights. Indeed, as Aristotle famously instructs: we do not know something until we know its cause.2 The legal and philosophical literature on the topic fills volumes, with sharp disagreement on the nature of the concept even among judges and arbitrators who agree on the result of a given dispute. In this context, the drafters of the International Law Commission’s (ILC’s) Draft Articles on the Responsibility of States for Internationally Wrongful Acts3 deftly chose to address causation tersely but directly, largely by inserting two words—‘caused by’—into article 31. This choice has helped to define the causation inquiry vis-à-vis matters of liability, while allowing tribunals...